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Slate‘s Kenji Yoshino has a great roundup of Prop 8’s effect on gay couples in California and around the country, detailing the legislation’s ramifications for California’s gay couples who are looking to marry, those who have already been married in the state, and couples across the country mounting their own legislative fights.
For California couples looking to marry, the immediate future is clear, he writes: Don’t expect to get married anytime soon.
California will have a moratorium on same-sex marriage for the foreseeable future. Although a state constitutional challenge was filed today, the only plausible legal challenge to Prop 8 is a federal constitutional one. But gay-rights groups will be loath to bring such a challenge, as it could be reviewed by the U.S. Supreme Court, which is not viewed as a friendly audience. A more likely response would be another proposition to reverse this one, offered through California’s relatively flexible referendum process. But that political remedy will likely be some years away, given the political and financial capital expended on this last fight.
The effect on already married gay couples (all 16,000 of them) in California is less clear; they could be recognized, washed out completely, or not recognized within the state of California.
California Attorney General Jerry Brown has opined that he believes those marriages will not get washed out by Prop 8. His position comports with the general intuition that retroactive legislation should not deprive people of vested rights like marriage. . . . [However] the amendment states that “only marriage between a man and a woman is valid or recognized in California.” A court could find that the pre-election marriages remain in existence but that California cannot recognize their validity going forward.
The effects of the legislation on further gay marriage activism “are significant but not devastating,” writes Yoshino:
Before Tuesday, court opinions legalizing same-sex marriage in Massachusetts, California, and Connecticut suggested that the right was gaining traction. The passage today of constitutional bans on same-sex marriage not just in California but also in Arizona and Florida provides a counterpoint.
Photo by Katie Tegtmeyer.